• Gutierrez , 27 CA5 1155, 238 CR3 729 (18) #A153419
The issue and holding are aptly stated by the court:
The issue in this case is one that arises every day in California. A law enforcement officer arresting someone for driving under the influence (DUI) informs the suspect that he or she must submit to a breath test or blood test to measure blood alcohol content (BAC). If the suspect, faced with this choice between tests, elects a blood test, must the arresting officer then get a warrant before having the suspect’s blood drawn? We conclude no warrant is necessary in these circumstances, under the well-recognized and categorical exception to the Fourth Amendment’s warrant requirement for a search incident to arrest.
The United States Supreme Court recently applied the search-incident-to-arrest doctrine to BAC testing in Birchfield v. North Dakota (2016) 579 U.S. ___ [136 S.Ct. 2160] (Birchfield). Birchfield held that a motorist arrested on DUI charges may be compelled to blow into a machine to measure the driver’s BAC; the arresting officer needs no warrant because a breath test is a valid search incident to a DUI arrest. (Id. at p. 2176.) But if instead the officer directs that the suspect’s blood be drawn for the same purpose, the officer does need a warrant. A blood test is more intrusive, and so cannot be justified under the search-incident-to-arrest exception to the warrant requirement, Birchfield held. (Id. at p. 2184.) What Birchfield does not address is how the search-incident-to-arrest exception applies when a suspect is compelled to undergo BAC testing but given a choice as to what form that testing takes. We hold that this element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.
The Birchfield case arose out of North Dakota, which made the following distinction possible:
Unlike North Dakota, where the law enforcement officer determines which test to administer, in California a DUI suspect usually is given the choice between a breath test and a blood test . . . Gutierrez was given that choice. For him, the search consisted of whichever of the two chemical tests he preferred. If the state can lawfully require a DUI suspect to take a breath test – and Birchfield says that it can – then surely the state can lawfully require the suspect to take that same breath test or an alternative if he prefers it. That the state cannot compel a warrantless blood test does not mean that it cannot offer one as an alternative to the breath test that it clearly can compel. This was the essential insight of the appellate panel that led it to reverse the trial court in this case.
Thus, the crucial issue is consent, and for that the standard test is used:
By opting for the more intrusive procedure, Gutierrez effectively volunteered for whatever additional intrusion a blood test involves, over and above the intrusion inherent in a breath test. For this reason, a suspect who opts for a blood test may be said to consent to the additional intrusion the test entails. But this is a different question from whether a suspect consents to a chemical test in the first place. Consent to a search, as a separate exception to the warrant requirement, must be evaluated under the totality of the circumstances. … Here, the parties cite a host of circumstances to support their respective arguments as to whether Gutierrez freely and voluntarily consented to the search in this case.
Ruling on Pat Searches Post Prop. 64
- Fews, 27 CA5 553, 238 CR3 337(18) #A151727:
Prop. 64 added Health and Safety Code section 11362.1, which provides that “it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to: . . . [p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis . . . “
And further that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”
In this case, a white SUV was pulled over in the Tenderloin district of San Francisco. The driver, Mims, popped out of the SUV while Fews remained inside. The duo made “furtive movements” while the Offs smelled the odor of burning hippie lettuce. Mims admitted to having a blunt.
Based on the high-crime area, the odor, and the furtive movements, the Offs patted down both Mims and Fews. Fews had a Beretta semiautomatic handgun. He also had three prior strikes and was out on bail enhancement.
So Fews moved to suppress, based on Prop. 64:
Fews argues that after the passage of Proposition 64, law enforcement officers can no longer assume that a person possessing a small amount of marijuana is armed and engaged in criminal activity. We think this contention overstates the effect of Proposition 64. It remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed “commercial cannabis activity,” and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving. (Bus. & Prof. Code, §§ 26001, subd. (k), 26037, 26038, subd. (c); see Health & Saf. Code, §§ 11362.1, subd. (a), 11362.2, subd. (a), 11362.3, subd. (a), 11362.45, subd. (a).) The possibility of an innocent explanation for the possession of marijuana “does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894.) Because marijuana possession and use is still highly circumscribed by law even after the passage of Proposition 64, the odor and presence of marijuana in a vehicle being driven in a high-crime area, combined with the evasive and unusual conduct displayed by Fews and Mims as discussed above, were still reasonably suggestive of unlawful drug possession and transport to support the Terry frisk.
Sniffing Around For A Prolonged Detention
- Vera ___ CA5 ___, ___ CR3 ___ (18) #E069367
In RODRIGUEZ, 135 SC 1609 (15), the U.S. Supreme Court held that a traffic stop may not be prolonged for a dog sniff once the “mission” of the traffic stop (e.g., issuing a citation) is completed.
In this case, Vera was pulled over for illegally tinted windows. After showing some initial recalcitrance, Vera was ordered out and patted down. He had a “switchblade” knife that was legal.
Another officer arrived, and officer #1 went to his car to get a citation book and his dope-sniffing dog. Officer #2 started writing out the citation, during which time the dog alerted on the car. To the tune of 4.5 kilograms of meth.
Vera was charged with felony possession for sale. His 1538.5 was denied, and the court of appeal, per Raphael, J., affirmed.
The key distinction with RODRIGUEZ is that here the dog sniff was concurrent with the “mission” of the traffic stop. The alert on the car happened while the citation was being written.
The issue to be determined is the length of time it reasonably takes to issue a ticket in any given circumstance.